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OPERATIONAL LAW HANDBOOK (August 2006)

MAJ John Rawcliffe CPT Jeannine Smith

Editors

Contributing Authors

LTC Eugene Baime MAJ Jeremy Ball LtCol Richard Batty, UK LT Rachel Brailler, USCG MAJ Christopher Brown Maj. R. Craig Burton, USAF LTC Ian Corey CPT Brent Fitch MAJ Chris Fredrikson MAJ Lance Hamilton LCDR Robert Hunt, USN MAJ Gretchen Jackson

Mr. Richard Jackson MAJ Chris Jacobs MAJ R. Lance Miller Mr. Hays Parks MAJ Steve Patoir MAJ John Rawcliffe MAJ Jennifer Santiago LTC Jeffrey Sexton MAJ Kurt Takushi LtCol Thomas Wagoner, USMC MAJ Sean Watts LTC Robert Yoh

All of the faculty who have served before us

and contributed to the literature in the field of operational law.

Technical Support

Ms. Terri Thorne, Secretary Mr. Byrd Eastham, Cover Art

JA 422 International and Operational Law Department

The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903

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PREFACE

The Operational Law Handbook is a “how to” guide for Judge Advocates practicing operational law. It provides references and describes tactics and techniques for the practice of operational law. It supports the doctrinal concepts and principles of FM 3-0 and FM 27-100. The Operational Law Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide “the school solution” to a particular problem, but to help judge advocates recognize, analyze, and resolve the problems they will encounter in the operational context. Similarly, the Handbook is not intended to represent official U.S. policy regarding the binding application of varied sources of law, though the Handbook may reference source documents which themselves do so.

The Handbook was designed and written for Judge Advocates practicing operational law. The size and contents of the Handbook are controlled by this focus. Frequently, the authors were forced to strike a balance between the temptation to include more information and the need to retain the Handbook in its current size and configuration. Simply put, the Handbook, is made for the Soldiers, Marines, Airmen, Sailors, and Coast Guardsmen of the service judge advocate general’s corps, who serve alongside their clients in the operational context. Accordingly, the Operational Law Handbook is compatible with current joint and combined doctrine. Unless otherwise stated, masculine pronouns apply to both men and women.

The proponent for this publication is the International and Operational Law Department, The Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments, suggestions, and work product from the field to TJAGLCS, International and Operational Law Department, Attention: MAJ John Rawcliffe, 600 Massie Road, Charlottesville, Virginia 22903-1781. To gain more detailed information or to discuss an issue with the author of a particular chapter or appendix call MAJ Rawcliffe at DSN 521-3383; Commercial (434) 971-3383; or email [email protected].

In recent years, the Operational Law Handbook has been published in July or August, and dated for the following year. For example, the 2005 edition was first published in August 2004. Beginning with this edition, the date of the Handbook will be the date of actual publication. Accordingly, the 2007 Operational Law Handbook can be expected in August 2007.

The August 2006 Operational Law Handbook is on the Internet at www.jagcnet.army.mil in both the Operational Law and CLAMO databases. The digital copies are particularly valuable research tools because they contain many hypertext links to the various treaties, statutes, DoD Directives/Instructions/Manuals, CJCS Instructions, Joint Publications, Army Regulations, and Field Manuals that are referenced in the text.

To order copies of the August 2006 Operational Law Handbook, please call CLAMO at DSN 521-3339; Commercial (434) 971 3339; or email [email protected].

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TABLE OF CONTENTS

Legal Basis for the Use of Force........................................................................................Chapter 1 The Law of War .................................................................................................................Chapter 2 Human Rights ....................................................................................................................Chapter 3 The Law of War in Military Operations Other Than War .................................................Chapter 4 Rules of Engagement .........................................................................................................Chapter 5 Emergency Essential Civilians Supporting Military Operations .......................................Chapter 6 Contractors Accompanying the Force ...............................................................................Chapter 7 Foreign and Deployment Claims .......................................................................................Chapter 8 Criminal Law in Operations...............................................................................................Chapter 9 Environmental Law in Operations ...................................................................................Chapter 10 Fiscal Law........................................................................................................................Chapter 11 Deployment Contracting and Battlefield Acquisition......................................................Chapter 12 Intelligence Law & Interrogation Operations ..................................................................Chapter 13 Administrative Law in Operations...................................................................................Chapter 14 International Agreements & SOFAs................................................................................Chapter 15 Legal Assistance in Operations........................................................................................Chapter 16 Combating Terrorism.......................................................................................................Chapter 17 Information Operations....................................................................................................Chapter 18 Domestic Operations........................................................................................................Chapter 19 Noncombatant Evacuation Operations ............................................................................Chapter 20 Special Operations ...........................................................................................................Chapter 21 Air, Sea, and Space Law..................................................................................................Chapter 22 Reserve Component Soldiers and Operations..................................................................Chapter 23 Joint Operations ...............................................................................................................Chapter 24

Department of Defense Joint Command & Staff Army Air Force Marines Navy Coast Guard NATO Coalition Actions

Detainee Operations.........................................................................................................Chapter 25 Military Decision Making Process & OPLANS..............................................................Chapter 26 Center for Law and Military Operations (CLAMO)........................................................Chapter 27 World Wide Web sites and other Electronic Resources ..................................................Chapter 28 Glossary Index

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EXPANDED TABLE OF CONTENTS

Legal Basis for the Use of Force................................................................................................1 The Law of War .......................................................................................................................11

Appendix A. Law of War Class Outline...........................................................................38 Appendix B. Troop Information .......................................................................................43

Human Rights ..........................................................................................................................47 The Law of War in Military Operations Other Than War .......................................................55

Appendix A. Treatment of Persons...................................................................................75 Appendix B. Treatment of Property..................................................................................79 Appendix C. Displaced Persons........................................................................................80

Rules of Engagement ...............................................................................................................85 Appendix A. SROE Extracts.............................................................................................97 Appendix B. Sample ROE Cards....................................................................................113

Emergency Essential Civilians Supporting Military Operations ...........................................121 Contractors Accompanying the Force (CAF) ........................................................................129 Foreign and Deployment Claims ...........................................................................................149

Appendix A. Single-Service Claims Responsibility Assignment...................................158 Appendix B. Unit Claims Officer Deployment Guide....................................................168 Appendix C. Deployment Claims Office Operations Outline ........................................175 Appendix D. Sample Deployment Claims SOP .............................................................178

Criminal Law in Operations...................................................................................................193 Appendix A. Rules Governing Transfer of Court-Martial Cases Upon Deployment.....205 Appendix B. Sample Request for GCMCA Designation................................................210 Appendix C. Sample General Orders Number 1 ............................................................211 Appendix D. MEJA Messages........................................................................................220

Environmental Law in Operations .........................................................................................227 Appendix. Summaries of Major Domestic Environmental Laws...................................241

Fiscal Law..............................................................................................................................245 Deployment Contracting and Battlefield Acquisition............................................................297

Appendix A. SF 44 .........................................................................................................312 Appendix B. Property Control Record Book..................................................................315

Intelligence Law & Interrogation Operations ........................................................................321 Appendix. Intelligence Law References .........................................................................325

Administrative Law in Operations.........................................................................................329 Appendix. Investigation Guide for Informal Investigations ...........................................368

International Agreements & SOFAs......................................................................................379 Legal Assistance in Operations..............................................................................................391 Combating Terrorism.............................................................................................................407 Information Operations..........................................................................................................421 Domestic Operations..............................................................................................................437

Appendix A. Memo Implementation Guidance OASD(HD) .........................................461 Appendix B. Msg on Army Director of Military Support ..............................................464 Appendix C. Memo on Training Support to Civilian Law Enforcement .......................465

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Appendix D. NDAA FY2002 Counterdrug Activities ...................................................466 Appendix E. Memo on Immediate Response Requests ..................................................468

Noncombatant Evacuation Operations ..................................................................................471 Special Operations .................................................................................................................479 Air, Sea, and Space Law........................................................................................................503 Reserve Component Soldiers and Operations........................................................................513 Joint Operations .....................................................................................................................519

Department of Defense ....................................................................................................519 Joint Command & Staff ...................................................................................................523 Army ................................................................................................................................526 Air Force ..........................................................................................................................529 Marine Corps ...................................................................................................................531 Navy.................................................................................................................................534 Coast Guard .....................................................................................................................536 NATO ..............................................................................................................................547 Coalition Action...............................................................................................................551

Detainee Operations...............................................................................................................557 Military Decision Making Process & OPLANS....................................................................565

Appendix. Formats for Legal Appendices ......................................................................575 CLAMO: Deployments, CTC Participation, and Resource...................................................585 World Wide Web sites and other Electronic Resources ........................................................599

Glossary .................................................................................................................................607

Index ......................................................................................................................................615

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Page Intentionally Left Blank.

Chapter 1 Legal Basis for the Use of Force

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CHAPTER 1

LEGAL BASIS FOR USE OF FORCE

I. INTRODUCTION

There are a variety of internationally-recognized legal bases for use of force in relations between States, found in both customary and conventional law. However, modern jus ad bellum (the law of resorting to war) is generally reflected in the United Nations Charter. The Charter provides two bases for the resort to force: Chapter VII enforcement actions under the auspices of the Security Council, and self-defense pursuant to Article 51 (which governs acts of both individual and collective self-defense).

A. Policy and Legal Considerations.

1. Before committing U.S. military force abroad, decision-makers must make a number of fundamental policy determinations. The President and the national civilian leadership must be sensitive to the legal, political, diplomatic and economic factors inherent in a decision to satisfy national objectives through the use of force. The legal underpinnings, both international and domestic, are the primary concern in this determination. Thus, any decision to employ force must rest upon the existence of a viable legal basis in both international law and domestic legal authority (including application of the 1973 War Powers Resolution (WPR), Public Law 93-148, 50 U.S.C. §§ 1541-1548).

2. Though these issues will normally be resolved at the national political level, it is nevertheless essential that the judge advocate (JA) understand the basic concepts involved in a determination to use force. Using the mission statement provided by higher authority, JAs must become familiar with the legal justification for the mission and, in coordination with higher headquarters, be prepared to brief all local commanders on the justification. This will enable commanders to better plan their missions, structure public statements, and conform the conduct of military operations to national policy. It will also assist commanders in drafting and understanding Rules of Engagement (ROE) for the mission, since one of the primary purposes of ROE is to ensure that any use of force is consistent with national security and policy objectives.

3. The JA must also be mindful of the fact that the success of any military mission abroad will likely depend upon the degree of domestic support demonstrated during the initial deployment and sustained operation of U.S. forces. A clear, well-conceived, effective and timely articulation of the legal basis for a particular mission will be essential to sustaining support at home and gaining acceptance abroad.

B. The General Prohibition Against the Use of Force.

1. The UN Charter mandates that all member nations resolve their international disputes peacefully,1 and requires that they refrain in their international relations from the threat or use of force.2 An integral aspect of this proscription is the principle of nonintervention, which provides that States must refrain from interference in other States’ internal affairs. Stated in another way, nonintervention stands for the proposition that States must respect one another’s sovereignty.

2. American policy statements have frequently affirmed this principle, and it has been made an integral part of U.S. law through the ratification of the Charters of the UN and the Organization of American States (OAS), 3

1 UN Charter, Article 2(3): "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered." The UN Charter is reprinted in full in the back of this Handbook. 2 UN Charter, Article 2(4): "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . ." 3 OAS Charter, Article 18: "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements." See also Inter-American Treaty of Reciprocal


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as well as other multilateral international agreements which specifically incorporate nonintervention as a basis for mutual cooperation.

II. THE LAWFUL USE OF FORCE

Despite the UN Charter’s broad legal prohibitions against the use of force and other forms of intervention, specific exceptions exist that justify a State’s recourse to the use of force or armed intervention. While States have made numerous claims, utilizing a wide variety of legal bases to justify a use of force, it is generally agreed that only two types of action legitimately fall within the ambit of international law: (1) actions authorized by the UN Security Council under Chapter VII of the UN Charter, and (2) actions that constitute a legitimate act of individual or collective self-defense pursuant to Article 51 of the UN Charter and/or customary international law.

A. UN Enforcement Actions (Chapter VII).

1. Chapter VII of the UN Charter, entitled “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression,” gives the Security Council authority to determine what measures should be employed to address acts of aggression or other threats to international peace and security. The Security Council must first, in accordance with Article 39, determine the existence of a threat to the peace, a breach of the peace or an act of aggression. It then has the power under Article 41 to employ measures short of force, including a wide variety of diplomatic and economic sanctions against the target State, to compel compliance with its decisions. Should those measures prove inadequate (or should the Security Council determine that non-military measures would prove inadequate), the Security Council has the power to authorize member States to employ military force in accordance with Article 42. Some recent examples of UN Security Council actions to restore international peace and security include:

a. Security Council Resolution 678 (1990), which authorized member States cooperating with the Government of Kuwait to use “all necessary means” to enforce previous resolutions. It was passed in response to the 1990 Iraqi invasion of Kuwait, pursuant to the Security Council’s authority under Chapter VII.

b. Security Council Resolution 794 (1992), which authorized member States to use “all necessary means to establish, as soon as possible, a secure environment for humanitarian relief operations in Somalia.”

c. Security Council Resolution 940 (1994), which authorized member States “to form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement . . . .”

d. Security Council Resolution 1031 (1995), which authorized member States “acting through or in cooperation with the organization [NATO] referred to in Annex 1-A of the Peace Agreement [Dayton Accords] to establish a multinational implementation force (IFOR) under unified command and control [NATO] in order to fulfill the role specified in Annex 1-A and Annex 2 of the Peace Agreement;” and authorized “the Member States… to take all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A of the Peace Agreement . . .”

e. Security Council Resolution 1264 (1999), which authorized “the establishment of a multinational force . . . to restore peace and security in East Timor. . . ” and further authorized “the States participating in the multinational force to take all necessary measures to fulfil this mandate . . .”

f. Security Council Resolution 1386 (2001), which authorized the establishment of an International Security Assistance Force (ISAF) to assist the Afghan Interim Authority. Additionally, this Resolution authorized member States participating in the ISAF to “take all necessary measures to fulfill its mandate.” Assistance (Rio Treaty), Art. I: ". . . Parties formally condemn war and undertake in their international relations not to resort to threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or this Treaty."


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g. Security Council Resolution 1511 (2003), which authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”

h. Security Council Resolution 1529 (2004), which authorized member States participating in the Multinational Interim Force in Haiti to “take all necessary measures to fulfill its mandate.” Specifically, the Multinational Interim Force was tasked with restoring peace and security in Haiti following the resignation and departure of former President Aristide.

2. OPERATION IRAQI FREEDOM.

a. In the months leading up to the U.S.-led invasion of Iraq in 2003, U.S. diplomats worked to obtain UN Security Council support for a new resolution explicitly authorizing the use of military force. When these diplomatic efforts failed, many critics opined that, as a result, the U.S. lacked a legitimate basis for using force against Iraq. The Bush Administration countered that authority existed in previous Security Council resolutions. Looking back to November 1990, the Security Council had passed Resolution 678, which:

Authorize[d] Member States co-operating with the government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

b. Significantly, Resolution 678 authorized the use of force not only to expel Iraqi forces from Kuwait (implementing Resolution 660), but also to restore international peace and security in the area. In an attempt to bring this goal of peace and security in the northern Arabian Gulf region to fruition, the Council passed Resolution 687, which formalized the cease-fire between coalition and Iraqi forces. As a consequence, Resolution 687 placed certain requirements on the government of Iraq, including:

(1) Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto; and

(2) Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above.

c. The U.S. position is that Resolution 687 never terminated the authorization to use force contained in Resolution 678. It merely suspended it with a cease-fire, conditioned upon Iraq’s acceptance of and compliance with the terms contained in the document and discussed above. While the Government of Iraq accepted the terms, compliance was never achieved. The Council recognized this situation in November 2002 with the adoption of Resolution 1441, which stated in part that “Iraq has been and remains in material breach of its obligations under relevant resolutions, including Resolution 687 (1991)….” It was the position of the U.S. Government that, since Iraq remained in material breach of Resolution 687, the cease-fire contained therein was null and void, and the authorization to use “all necessary means” to return peace and stability to the region (from Resolution 678) remained in effect. Under this rationale, a new Security Council resolution again authorizing “all necessary means” was politically advisable, yet legally unnecessary.

B. Regional Organization Enforcement Actions. Chapter VIII of the UN Charter recognizes the existence of State arrangements that deal with matters relating to the maintenance of international peace and security, as are appropriate for regional actions (Article 52). Regional organizations, such as the OAS, the Organization of African Unity and the Arab League, attempt to resolve regional disputes peacefully, prior to the issue being referred to the UN Security Council. Regional organizations do not, however, have the ability to unilaterally authorize the use of force (Article 53). Rather, the Security Council may utilize the regional organization to carry out Security Council enforcement actions.


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III. SELF-DEFENSE

A. Generally.

1. The right of all nations to defend themselves was well-established in customary international law prior to adoption of the UN Charter. Article 51 of the Charter provides:

“Nothing in the present Chapter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN until the Security Council has taken measures necessary to maintain international peace and security. . . .”

2. The questions that inevitably arise in conjunction with the “codified” right of self-defense involve the scope of authority found therein. Does this right, as is suggested by the language of Article 51, exist only when a State is responding to an actual “armed attack,” and then only until the Security Council takes effective action? In other words, has the customary right of self-defense been limited in some manner by adoption of the Charter, thus eliminating the customary concept of anticipatory self-defense (see below) and extinguishing a State’s authority to act independently of the Security Council in the exercise of self-defense?

3. Those in the international community who advocate a restrictive approach in the interpretation of the Charter, and in the exercise of self-defense, argue that reliance upon customary concepts of self-defense, to include anticipatory self-defense, is inconsistent with the clear language of Article 51 and counterproductive to the UN goal of peaceful resolution of disputes and protection of international order.

4. In contrast, many States, including the U.S., argue that an expansive interpretation of the Charter is more appropriate, contending that the customary law right of self-defense (including anticipatory self-defense) is an inherent right of a sovereign State that was not “negotiated” away under the Charter. Arguing that contemporary experience has demonstrated the inability of the Security Counsel to deal effectively with acts and threats of aggression, these States argue that, rather than artificially limiting a State’s right of self-defense, it is better to conform to historically accepted criteria for the lawful use of force, including circumstances which exist outside the “four corners” of the Charter.

B. Customary International Law and the UN Charter.

1. It is well-accepted that the UN Charter provides the essential framework of authority for use of force, effectively defining the foundations for a modern jus ad bellum. Inherent in its principles are the requirements for both necessity (the exhaustion or ineffectiveness of peaceful means of resolution; the nature of coercion applied by the aggressor State; objectives of each party; and the likelihood of effective community intervention) and proportionality (limitation of force to the magnitude, scope and duration to that which is reasonably necessary to counter a threat or attack), as well as an element of timeliness (i.e., delay of a response to attack or threat of attack attenuates the immediacy of the threat and the necessity for use of force).

2. Within the bounds of both the UN Charter and customary practice, the inherent right of self-defense has primarily found expression in three recurring areas: 1) protection of nationals and their property located abroad; 2) protection of a nation’s political independence; and 3) protection of a nation’s territorial integrity. JAs must be familiar with these foundational issues, as well as basic concepts of self-defense, as they relate to overseas deployments and operations, such as the Chairman of the Joint Chiefs of Staff (CJCS) Standing ROE and the response to State-sponsored terrorism.

a. Protection of Nationals.

(1) Customarily, a State is afforded the right to protect its citizens abroad if their lives are placed in jeopardy and a host State is either unable or unwilling to protect them. This right is cited as the justification for non-combatant evacuation operations, discussed in greater detail in Chapter 20 of this Handbook.


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(2) The protection of U.S. nationals was identified as one of the legal bases justifying initial U.S. military intervention in both Grenada and Panama. In each case, however, the United States emphasized that protection of U.S. nationals, standing alone, did not necessarily provide the legal basis for the full range of U.S. activities undertaken in those countries. Thus, while intervention for the purpose of protecting nationals is a valid and essential element in certain uses of force, it cannot serve as an independent basis for continued U.S. military presence in another country after the mission of safeguarding U.S. nationals has been accomplished.

(3) The right to use force to protect citizens abroad also extends to situations in which a host State is an active participant in the activities posing a threat to another State’s citizens (e.g., the government of Iran’s participation in the hostage-taking of U.S. embassy personnel in that country in 1979-81; and Ugandan President Idi Amin’s support of terrorists who kidnapped Israeli nationals and held them at the airport in Entebbe).

b. Protection of Political Independence. A State’s political independence is a direct attribute of sovereignty, and includes the right to select a particular form of government and its officers; the right to enter into treaties; and the right to maintain diplomatic relations with the world community. The rights of sovereignty or political independence also include the freedom to engage in trade and other economic activity. Consistent with the principles of the UN Charter and customary international law, each State has the duty to respect the political independence of every other State. Accordingly, force may be used to protect a State’s political independence when it is threatened and all other avenues of peaceful redress have been exhausted.

c. Protection of Territorial Integrity. States possess an inherent right to protect their national borders, airspace and territorial seas. No nation has the right to violate another nation’s territorial integrity, and force may be used to preserve that integrity consistent with the customary right of self-defense.

C. Collective Self-Defense.

1. To constitute a legitimate act of collective self-defense, all conditions for the exercise of an individual State’s right of self-defense must be met, along with the additional requirement that assistance is requested. There is no recognized right of a third-party State to intervene in internal conflicts where the issue in question is one of a group’s right to self-determination and there is no request by the de jure government for assistance.

a. Collective Defense Treaties and Bilateral Military Assistance Agreements.

(1) Collective defense treaties, such as the North Atlantic Treaty (NATO); the Inter-American Treaty of Reciprocal Assistance (the Rio Treaty); the Security Treaty Between Australia, New Zealand and the United States (ANZUS); and other similar agreements do not provide an international legal basis for the use of U.S. force abroad, per se. These agreements simply establish a commitment among the parties to engage in “collective self-defense” in specified situations, and provide the framework through which such measures are to be taken. From an international law perspective, a legal basis for engaging in measures involving the use of military force abroad must still be established from other sources of international law extrinsic to these collective defense treaties (i.e., collective self-defense).

(2) The United States has entered into bilateral military assistance agreements with numerous countries around the world. These are not defense agreements, and thus impose no commitment on the part of the United States to come to the defense of the other signatory in any given situation. Moreover, such agreements, like collective defense treaties, also provide no intrinsic legal basis for the use of military force.

D. Anticipatory Self-Defense Under Customary Law.

1. As discussed above, many States embrace an interpretation of the UN Charter that extends beyond the black letter language of Article 51, embracing the customary law principle of “anticipatory self-defense;” that is, justifying use of force to repel not just actual armed attacks, but also “imminent” armed attacks. Under this concept, a State is not required to absorb the “first hit” before it can resort to the use of force in self-defense to repel an imminent attack.


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2. Anticipatory self-defense finds its roots in the 1837 Caroline case and subsequent correspondence between then-U.S. Secretary of State Daniel Webster and his British Foreign Office counterpart Lord Ashburton. Secretary Webster posited that a State need not suffer an actual armed attack before taking defensive action, but may engage in anticipatory self-defense if the circumstances leading to the use of force are “instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.” As with any form of self-defense, the principles of necessity and proportionality serve to bind the actions of the offended State.

3. Because the invocation of anticipatory self-defense is fact-specific in nature, and therefore appears to lack defined standards of application, it remains controversial in the international community. Concerns over extension of anticipatory self-defense as a pretext for reprisal or even preventive actions (i.e., use of force before the coalescence of an actual threat) have not been allayed by contemporary use. The United States in particular, in actions such as ELDORADO CANYON (the 1986 strike against Libya) and the 1998 missile attack against certain terrorist elements in Sudan and Afghanistan, has increasingly employed anticipatory self-defense as the underlying rationale for use of force in response to actual or attempted acts of violence against U.S. citizens and interests.

4. It is important to note, however, that anticipatory self-defense serves as a foundational element in the CJCS Standing ROE, as embodied in the concept of “hostile intent,” which makes it clear to commanders that they do not and should not have to absorb the first hit before their right and obligation to exercise self-defense arises.

E. Pre-emptive Uses of Force.

1. In “The National Security Strategy of the United States of America” published in September 2002, the U.S. Government took a step toward what many view as a significant expansion of use of force doctrine from anticipatory self-defense to preemption4. This position was reinforced in March 2006 when “The National Security Strategy of the United States of America” and the doctrine of preemptive self-defense were reaffirmed.5

We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends. Our response must take full advantage of strengthened alliances, the establishment of new partnerships with former adversaries, innovation in the use of military forces, modern technologies…

It has taken almost a decade for us to comprehend the true nature of this new threat. Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first.6

2. The reason for this change can be seen in the very nature of the terrorist threat.

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and potentially, the use of

4 The White House, The National Security Strategy of the United States of America, (2002). 5 The White House, The National Security Strategy of the United States of America, (2006). 6 The White House, The National Security Strategy of the United States of America, 14-15 (2002).


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weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning.7

3. For almost two centuries, the right of anticipatory self-defense has been predicated upon knowing, with a reasonable level of certainty, the time and place of an enemy’s forthcoming attack. In this age of terrorism, where warnings may not come in the guise of visible preparations, the President has determined that the United States will not wait. In that regard, the Bush Administration has stated: “The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.”8

IV. DOMESTIC LAW AND THE USE OF FORCE: THE WAR POWERS RESOLUTION

A. In every situation involving the possible use of U.S. forces abroad, one of the first legal determinations to be made embraces the application of Constitutional principles and the WPR.9

B. The Constitution divides the power to wage war between the Executive and Legislative branches of government. Under Article I, Congress holds the power to declare war; to raise and support armies; to provide and maintain a navy; and to make all laws necessary and proper for carrying out those responsibilities. Balancing that legislative empowerment, Article II vests the Executive power in the President and makes him the Commander-in-Chief of the Armed Forces. This ambiguous delegation of the war powers created an area in which the coordinate political branches of government exercise concurrent authority over decisions relating to the use of Armed Forces overseas as an instrument of U.S. foreign policy.

C. Until 1973, a pattern of Executive initiative, Congressional acquiescence, and Judicial deference combined to give the President primacy in decisions to employ U.S. forces. In order to reverse the creeping expansion of Presidential authority and to reassert its status as a “full partner” in decisions relating to use of U.S. forces overseas, Congress passed, over Presidential veto, the WPR. The stated purpose of the WPR is to ensure the “collective judgment” of both branches in order to commit to the deployment of U.S. forces by requiring consultation of and reports to Congress, in any of the following circumstances:

1. Introduction of troops into actual hostilities.

2. Introduction of troops, equipped for combat, into a foreign country.

3. Greatly enlarging the number of troops, equipped for combat, in a foreign country.

D. The President is required to make such reports within 48 hours of the triggering event, detailing: the circumstances necessitating introduction or enlargement of troops; the Constitutional or legislative authority upon which he bases his action; and the estimated scope and duration of the deployment or combat action.

E. The issuance of such a report, or a demand by Congress for the President to issue such a report, triggers a sixty-day clock. If Congress does not declare war, specifically authorize the deployment/combat action, or authorize an extension of the WPR time limit during that period, the President is required to terminate the triggering action and withdraw deployed forces. The President may extend the deployment for up to thirty days should he find circumstances so require, or for an indeterminate period if Congress has been unable to meet due to an attack upon the United States.

F. Because the WPR was enacted over the President’s veto, one of the original purposes of the act – establishment of a consensual, inter-branch procedure for committing our forces overseas – was undercut. In that regard, no President has conceded the constitutionality of the WPR or technically complied with its mandates. Although the applicability of the WPR to specific operations will not be made at the Corps or Division level, once U.S. forces are committed overseas, a deploying JA must be sensitive to the impact of the WPR on the scope of

7 Id. at 15. 8 Id. at 15. 9 Public Law 93-148, 50 U.S.C. §§ 1541-1548.


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operations, particularly with respect to the time limitation placed upon deployment under independent Presidential action (i.e., the WPR’s 60-day clock).

G. Procedures have been established which provide for CJCS review of all deployments that may implicate the WPR. The Chairman’s Legal Advisor, upon reviewing a proposed force deployment, is required to provide to the DoD General Counsel his analysis of the WPR’s application. If the DoD General Counsel makes a determination that the situation merits further inter-agency discussion, he or she will consult with both the State Department Legal Advisor and the Attorney General. As a result of these discussions, advice will then be provided to the President concerning the consultation and reporting requirements of the WPR.

H. In the unlikely event that a JA or his or her supported commander is presented with a question regarding the applicability of the WPR, the appropriate response should be that the operation is being conducted at the direction of the National Command Authority, and is therefore presumed to be in accordance with applicable domestic legal limitations and procedures.


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NOTES


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NOTES

Chapter 2 The Law of War

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CHAPTER 2

THE LAW OF WAR

REFERENCES

1. Hague Convention No. IV, 18 October 1907, Respecting the Laws and Customs of War on Land, T.S. 539, including the regulations thereto [hereinafter H. IV].

2. Hague Convention No. IX, 18 October 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2314 [hereinafter H. IX].

3. Geneva Convention, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31 [hereinafter GWS].

4. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members, August 12, 1949, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.S.T.S. 85 [hereinafter GWS Sea].

5. Geneva Convention, Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135 [hereinafter GPW].

6. Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287 [hereinafter GC].

7. The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M. 1391, DA Pam 27-1-1 [hereinafter AP I & II]; Protocol Additional to the Geneva Conventions, August 12, 2005 [hereinafter AP III].

8. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65 [hereinafter 1925 Geneva Protocol].

9. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, January 13, 1993, 32 I.L.M. 800 [hereinafter CWC].

10. 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216 [hereinafter 1954 Cultural Property Convention].*

11. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972, 26 U.S.T. 583 [hereinafter BWC].

12. United Nations Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, October 10, 1980, 19 I.L.M. 1523 [hereinafter UNCCW].

13. FM 27-10, The Law of Land Warfare (dated 18 July 1956, including change 1 dated 15 July 1976) [hereinafter FM 27-10].

14. Dep’t of the Navy, Naval Warfare Publication 1-14M/U.S. Marine Corps MCPW 5-2.1, The Commander’s Handbook on the Law of Naval Operations (October 1995) [hereinafter NWP 1-14M].

15. DoDI 5000.2, Operation of the Defense Acquisition System (12 May 2003). 16. DoDD 2311.01E, DoD Law of War Program (9 May 2006) (cancelling DoDD

5100.77, DoD Law of War Program (9 December 1998)). 17. CJCSI 5810.01B, Implementation of the DoD Law of War Program (dated 25 March 2002,

current as of 28 March 2005).

*Treaties not ratified by United States.


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I. INTRODUCTION

The Law of War provides rights and assigns responsibilities. This Chapter will summarize key law of war provisions for military personnel and commanders in the conduct of operations in both international and non-international armed conflicts. This chapter will discuss the purposes and basic principles of the Law of War, its application in armed conflict, the legal sources of the law, the conduct of hostilities, treatment of protected persons, military occupation of enemy territory, neutrality, and compliance and enforcement measures. The Appendices to this chapter include a Law of War Teaching Outline and a Troop Information Outline.

II. DEFINITION

The law of war is defined as “that part of international law that regulates the conduct of armed hostilities.” It is often termed “the law of armed conflict.” The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law (DoDD 2311.01E, 9 May 2006).

III. POLICY

U.S. law of war obligations are national obligations, binding upon every Soldier, Sailor, Airman or Marine. DoD policy is to comply with the law of war “during all armed conflicts, however such conflicts are characterized, and in all other military operations.” (DoDD 2311.01E, para. 4.1).

IV. PURPOSES AND BASIC PRINCIPLES OF THE LAW OF WAR

A. The fundamental purposes of the law of war are humanitarian and functional in nature. The humanitarian purposes include:

1. protecting both combatants and noncombatants from unnecessary suffering;

2. safeguarding persons who fall into the hands of the enemy; and

3. facilitating the restoration of peace.

B. The functional purposes include:

1. ensuring good order and discipline;

2. fighting in a disciplined manner consistent with national values; and

3. maintaining domestic and international public support.

V. THE LAW OF WAR RESTS ON FOUR BASIC PRINCIPLES:

A. Principle of Military Necessity. The principle of military necessity is explicitly codified in Article 23, paragraph (g) of the Annex to Hague IV, which forbids a belligerent “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”

1. The principle of military necessity authorizes that use of force required to accomplish the mission. Military necessity does not authorize acts otherwise prohibited by the law of war. This principle must be applied in conjunction with other law of war principles discussed in this chapter, as well as other, more specific legal constraints set forth in law of war treaties to which the U.S. is a party.

2. Military necessity not a Criminal Defense. Military necessity is not a defense for acts expressly prohibited by law.


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a. Protected Persons. The law of war generally prohibits the intentional targeting of protected persons under any circumstances.

b. Protected Places - The Rendulic Rule. Civilian objects are protected from intentional attack or destruction, so long as they are not being used for military purposes, or there is no military necessity for their destruction or seizure. The law of war permits destruction of civilian objects if military circumstances necessitate such destruction. (FM 27-10, para. 56 and 58), or if the civilian object has become a military objective. The circumstances justifying destruction of civilian objects are those of military necessity, based upon information reasonably available to the commander at the time of his decision. See IX Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals, 1113 (1950). The Tribunal convicted General Lothar Rendulic of other charges but found him “not guilty” of unlawfully destroying civilian property through employment of a “scorched earth” policy. The court found that “the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made.” Current norms for protection (and destruction) of civilian property: Civilian objects are protected from intentional attack or damage unless they have become military objectives or “unless demanded by the necessities of war.” (HR, art. 23g.)

c. There may be situations where because of incomplete intelligence or the failure of the enemy to abide by the law of war, civilian casualties occur. Example: Al Firdus Bunker. During the first Persian Gulf War (1991), U.S. military planners identified this Baghdad bunker as an Iraqi military command and control center. Barbed wire surrounded the complex, it was camouflaged, armed sentries guarded its entrance and exit points, and electronic intelligence identified its activation. Unknown to coalition planners, however, some Iraqi civilians may have used upper levels of the facility as nighttime sleeping quarters. The bunker was bombed, allegedly resulting in 300 civilian casualties. Was there a violation of the law of war? No. Based on information gathered by Coalition planners, the commander made an assessment that the target was a military objective. Although the attack may have resulted in unfortunate civilian deaths, there was no law of war violation because the attackers acted in good faith based upon the information reasonably available at the time the decision to attack was made. See DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR, FINAL REPORT TO CONGRESS 615-16 (1992).

B. Principle of Discrimination or Distinction. This principle requires that combatants be distinguished from non-combatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict shall direct their operations only against combatants and military objectives. (AP I, Art. 48)

1. AP I prohibits “indiscriminate attacks.” Under Article 51, paragraph 4, these are attacks that:

a. are “not directed against a specific military objective,” (e.g., Iraqi SCUD missile attacks on Israeli and Saudi cities during the Persian Gulf War); b. “employ a method or means of combat the effects of which cannot be directed at a specified military objective,” (e.g., might prohibit area bombing in certain populous areas, such as a bombardment “which treats as a single military objective a number of clearly separated and distinct military objectives in a city, town, or village...”(AP I, art. 51, para. 5(a))); or c. “employ a method or means of combat the effects of which cannot be limited as required” by the Protocol (e.g., release of dangerous forces (AP I, art. 56) or collateral damage excessive in relation to concrete and direct military advantage (AP I, art. 51, para. 5(b)); and d. “consequently, in each case are of a nature to strike military objectives and civilians or civilian objects without distinction.” 2. Distinction is the customary international law obligation of parties to a conflict to engage only in military operations the effects of which distinguish between the civilian population (or individual civilians not taking a direct part in the hostilities), and combatant forces, directing the application of force solely against the latter. Similarly, military force may be directed only against military objects or objectives, and not against civilian objects. Under the principle of distinction, the civilian population as such, as well as individual civilians, may not be made the object of attack. (Article 51, para. 2, AP I).


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C. Principle of Proportionality. The anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. (FM 27-10, para. 41, change 1.) Proportionality is not a separate legal standard as such, but a way in which a military commander may assess his or her obligations as to the law of war principle of distinction, while avoiding actions that are indiscriminate.

1. Incidental Injury and Collateral Damage. Collateral damage consists of unavoidable and unintentional damage to civilian personnel and property incurred while attacking a military objective. Incidental (a/k/a collateral) damage is not a violation of international law. While no law of war treaty defines this concept, its inherent lawfulness is implicit in treaties referencing the concept. As stated above, AP I, Article 51(5) describes indiscriminate attacks as those causing “incidental loss of civilian life . . . excessive . . . to . . . the military advantage anticipated.”

2. That being said, the term, “attacks” is not well defined in the sense of the principle of proportionality, or as to the level at which such decisions are to be made. “Military advantage” is not restricted to tactical gains, but is linked to the full context of war strategy. Balancing between collateral damage to civilians objects and collateral civilian casualties may be done on a target-by-target basis, as frequently was done in the first (1991) and second (2003) Persian Gulf Wars, but also may be weighed in overall terms against campaign objectives. It may involve a variety of considerations, including security of the attacking force. See, for example, DOD Final Report to Congress, Conduct of the Persian Gulf War (April 1992), p. 611. Similarly, at the time of its ratification of Additional Protocol I, the United Kingdom declared that “‘the military advantage anticipated from an attack’ is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.”

D. Principle of Humanity or Unnecessary Suffering. Minimize unnecessary suffering – incidental injury to people and collateral damage to property. “It is especially forbidden . . . to employ arms, projectiles or material calculated to cause unnecessary suffering.” (HR, art. 23e.) This principle applies to the legality of weapons and ammunition. Military personnel may not use arms that are per se calculated to cause unnecessary suffering, sometimes referred to as superfluous injury (e.g., projectiles filled with glass, hollow point or soft-point small caliber ammunition, lances with barbed heads).

1. The prohibition of unnecessary suffering constitutes acknowledgement that necessary suffering to combatants is lawful, and may include severe injury or loss of life. There is no agreed definition for unnecessary suffering. A weapon or munition would be deemed to cause unnecessary suffering only if it inevitably or in its normal use has a particular effect, and the injury caused is considered by governments as disproportionate to the military necessity for it, that is, the military advantage to be gained from its use. This balancing test cannot be conducted in isolation. A weapon's or munition's effects must be weighed in light of comparable, lawful weapons or munitions in use on the modern battlefield.

2. A weapon cannot be declared unlawful merely because it may cause severe suffering or injury. The

appropriate determination is whether a weapon's or munition's employment for its normal or expected use would be prohibited under some or all circumstances. The correct criterion is whether the employment of a weapon for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to its military effectiveness. A State is not required to foresee or anticipate all possible uses or misuses of a weapon, for almost any weapon can be misused in ways that might be prohibited.

3. See discussion of the DoD Weapons Review Program, infra.

VI. APPLICATION OF THE LAW OF WAR

A. The Law of War applies to all cases of declared war or any other armed conflicts that arise between the U.S. and other nations, even if the state of war is not recognized by one of them. This threshold is codified in common article 2 of the Geneva Conventions. Armed conflicts such as the 1982 Falklands War, the Iran-Iraq War of the 1980s, and the first (1991) and second (2003) U.S.-led Coalition wars against Iraq clearly were international armed conflicts to which the Law of War applied. The 1977 Protocol I Additional to the 1949 Geneva Conventions has


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expanded this scope of application to include certain wars of “national liberation” for States Parties to that convention. The U.S. is not a Party to AP I and does not recognize this extension of the Law of War. Further, this expanded scope has not been applied since its promulgation.

1. In peace operations, such as those in Somalia, Haiti, and Bosnia, the question frequently arises whether the Law of War applies to those operations. The issue is less applicability of the law of war as such but complete applicability of particular treaties. Despite the possible inapplicability of the Law of War in military operations short of international armed conflict, it has been, nonetheless, the position of the U.S., UN, and NATO that their forces would apply the “principles and spirit” of the Law of War in these operations.10 IAW DoDD 2311.01E,11 U.S. forces now comply with the law of war during all military operations. However, the directive itself defines the “law of war,” limiting it to “binding law.” When facing situations which do not meet the traditional threshold of armed conflict (whether international or of a non-international character), judge advocates are encouraged to used the technical chain to determine how how best to comply with the law of war, bearing in mind historical U.S. practice.

2. Historically, when applying the DoD policy, allowances have been made for the fact that during these operations U.S. Forces often do not have the resources to comply with the Law of War to the letter. It has been U.S. practice to comply with the Law of War to the extent “practicable and feasible” where not directly applicable. (Memorandum of W. Hays Parks to the Judge Advocate General of the Army, 1 October 1990.) The Soldier’s Rules provide useful standards for the individual soldier in the conduct of operations across the conflict spectrum. In military operations short of international armed conflict, law of war treaties provide an invaluable template for military conduct. It will be the responsibility of the military commander, with the assistance and advice of the judge advocate, to determine those provisions that best fit the mission and situation.

VII. SOURCES OF THE LAW OF WAR.

A. The Law of The Hague (ref. (1) and (2)). Regulates “methods and means” of warfare—prohibitions against using certain weapons such as poison; humanitarian concerns such as warning the civilian population before a bombardment, and the law of belligerent occupation (particularly with respect to property). The rules relating to the methods and means of warfare are primarily derived from articles 22 through 41 of the Regulations Respecting the Laws and Customs of War on Land [hereinafter HR] annexed to Hague Convention IV. (HR, art. 22-41.)

B. Geneva Conventions of 1949 (ref. (3) - (6)). The Conventions protect “victims” of war such as wounded and sick, shipwrecked at sea, prisoners of war, and civilians.

C. 1977 Geneva Protocols (ref. (7)). Although the U.S. has not ratified AP I and II, 155 nations have ratified AP I. U.S. Commanders must be aware that many allied forces are under a legal obligation to comply with the Protocols and the U.S. believes some provisions of the Protocol to be customary international law (see 1986 memorandum from Hays Parks in document supplement). This difference in obligation has not proved to be a hindrance to U.S./allied or coalition operations since promulgation of AP I in 1977.

D. Other Treaties. The following treaties restrict specific aspects of warfare:

1. Chemical Weapons (ref. (8) and (9)). Geneva Protocol of 1925 prohibits use in war of asphyxiating, poisonous, or other gases (and bacteriological weapons; see below). The U.S. reserved the right to respond with chemical weapons to a chemical or biological weapons attack by the enemy. This reservation became moot when the United States ratified the Chemical Weapons Convention (CWC), article I(1), which prohibits production, acquisition, stockpiling, retention and use (even in retaliation). The U.S. ratified the CWC on 25 April 1997 , with declarations. The CWC entered into force on 29 April 1997.

2. Cultural Property (ref. (10)). The 1954 Hague Cultural Property Convention prohibits targeting cultural property, and sets forth conditions when cultural property may be used by a defender or attacked. Although the

10 DoDD 5100.77, DoD Law of War Program (9 December 1998) (rescinded); CJCSI 5810.01A, Implementation of the DoD Law of War Program (27 August 1999). 11 DoDD 2311.01E, DoD Law of War Program (9 May 2006).


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United States has not ratified the treaty, it regards its provisions as relevant to the targeting process: “United States policy and the conduct of operations are entirely consistent with the Convention’s provisions. In large measure, the practices required by the convention to protect cultural property were based upon the practices of US military forces during World War II.” Message from the President of the United States transmitting the Hague Protocol to the 106th Congress for Advice and Consent, 6 January 1999.

3. Biological Weapons (ref. ((8), 11)). Biological (bacteriological) weapon use was prohibited by the 1925 Geneva Protocol. It does not prohibit development, production and stockpiling. The 1972 Biological Weapons Convention (BWC) extended the prohibition contained in the 1925 Geneva Protocol, prohibiting development, production, stockpiling, acquisition or retention of biological agents or toxins, or weapons, equipment or means of delivery designed to use such toxins for hostile purposes or in armed conflict.

4. Conventional Weapons (ref. (12)). The treaty is often referred to as the UNCCW - United Nations Convention on Certain Conventional Weapons. The 1980 Conventional Weapons Treaty restricts, regulates or prohibits the use of certain otherwise lawful conventional weapons: Protocol I prohibits any weapon the primary effect of which is to injure by fragments which in the human body escape detection by x-ray. Protocol II regulates use of mines, booby-traps and other devices, while prohibiting certain types of anti-personnel mines to increase protection for the civilian population. The original Protocol II was replaced in 1996 by an Amended Mines Protocol, now Amended Protocol II. Protocol III regulates incendiary weapon use to increase protection for the civilian population. Protocol IV prohibits so-called ‘blinding laser weapons’, a non-existent weapon. Protocol V on explosive remnants of war was adopted on 28 November 2003 – the first international agreement to require the parties to an armed conflict, where feasible, to clear or assist the host nation or others in clearance of unexploded ordnance or abandoned explosive ordnance after the cessation of active hostilities. The U.S. ratified the UNCCW and Protocols I and II in 1995, and Amended Mines Protocol in 1999. The Senate has not offered its advice and consent as to Protocols III and IV. Protocol V has not been forwarded to the Senate for its advice and consent as to ratification.

E. Regulations. Implementing LOW guidance for U.S. Armed Forces is found in respective service manuals (FM 27-10 (Army), NWP 1-14M/FMFM 1-10 (Navy and Marine Corps), and AFPD 51-4 (Air Force).)

VIII. THE CONDUCT OF HOSTILTIES

A. Lawful Combatants and Unprivileged Belligerents

1. Combatants. Generally, combatants are military personnel engaging in hostilities in an armed conflict on behalf of a party to the conflict. Combatants are lawful targets unless “out of combat,” that is, wounded, sick or shipwrecked and no longer resisting, or captured.

a. Lawful Combatants. As defined, a lawful combatant:

(1) Is entitled to carry out attacks on enemy military personnel and equipment;

(2) May be the subject of lawful attack by enemy military personnel;

(3) Bears no criminal responsibility for killing or injuring enemy military personnel or civilians taking an active part in hostilities, or for causing damage or destruction to property, provided his or her acts have been in compliance with the law of war;

(4) May be tried for breaches of the law of war;

(5) May only be punished for breaches of the law of war as a result of a fair and regular trial;

(6) If captured, must be treated humanely; and

(7) If captured, is entitled to prisoner of war status.


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b. 1949 Geneva Conventions criteria (GPW, art. 4; GWS, art. 13.). Combatants include: the regular armed forces of a State Party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State Party to the conflict that are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of armed forces of a government not recognized by a detaining authority or occupying power. This list is a summary, but is not intended to be comprehensive or complete.

Protocol I Definition. Article 43 states that members of the armed forces of a party to the conflict, except medical personnel and chaplains, are combatants. Article 44(3) of AP I allows that a belligerent attains combatant status by merely carrying his arms openly during each military engagement, and when visible to an adversary while deploying for an attack. AP I thus drops the requirement for a fixed recognizable sign. The U.S. believes this does not reflect customary international law and diminishes the distinction between combatants and civilians, thus undercutting the effectiveness of the Law of War. Other governments, such as the United Kingdom, through reservations and/or statements of understanding, have narrowly restricted or virtually eliminated application of Article 44, ¶ 3.

c. Unprivileged belligerents. Unprivileged belligerents may include spies, saboteurs, or civilians who are participating in the hostilities or who otherwise engage in unauthorized attacks or other combatant acts. Unprivileged belligerents are not entitled to prisoner of war status, and may be prosecuted under the domestic law of the captor.

2. Forbidden Conduct with Respect to Enemy Combatants and Nationals

a. It is especially forbidden to declare that no quarter will be given, or to kill or injure enemy personnel who have surrendered. H. IV Reg. Art. 23. It is also forbidden to kill or wound treacherously individuals belonging to the hostile nation or armed forces. H. IV Reg. Art. 23. Belligerents are likewise prohibited to compel nationals of the enemy state to take part in hostilities against their own country. H. IV art. 23.

b. Assassination. Hiring assassins, putting a price on the enemy’s head, and offering rewards for an enemy “dead or alive” is prohibited. (FM 27-10, para 31; E.O. 12333.) Targeting military command and control is not assassination. See W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Army Law. Dec. 1989, at 4.

3. Civilians and Non-combatants. The law of war prohibits intentional attacks on civilians and non-combatants. The civilian population as such is protected from direct attack. An individual civilian is protected from direct attack unless and for such time as he or she takes a direct part in hostilities.

a. Non-combatants include, military medical personnel, chaplains, and those out of combat – including prisoners of war and the wounded, sick and shipwrecked.

b. Civilians who accompany the armed forces in the field in time of armed conflict are protected from direct attack unless and for such time as they take a direct part in hostilities. The phrase “direct part in hostilities” is not defined. Civilians who accompany the armed forces in the field may be at risk of injury or death incidental to lawful enemy attacks on military objectives.

IX. METHODS AND MEANS OF WARFARE/WEAPONS

A. “The rights of belligerents to adopt means of injuring the enemy is not unlimited.” (HR, art. 22.)

B. Legal Review. All U.S. weapons, weapons systems, and munitions must be reviewed by the service TJAG or DoD General Counsel for legality under the law of war. (DoD Directive 5000.1, AR 27-53, AFI 51-402 and SECNAVINST 5000.2c.) A review occurs before the award of the engineering and manufacturing development contract and again before the award of the initial production contract. (DoD Directive 5000.1) Legal review of new weapons is also required under Article 36 of AP I.


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1. The Test. Is a weapon or munition’s acquisition or use consistent with law of war and arms control treaties to which the United States is a State Party, or customary international law? In determining the legality of a weapon or munition, a balancing must be made between military necessity -- that is, the purpose for the weapon or munition -- and the prohibition of weapons or munitions calculated to cause unnecessary suffering.

C. The prohibition of unnecessary suffering constitutes acknowledgement that necessary suffering to combatants is lawful, and may include severe injury or loss of life. A weapon or munition would be deemed to cause unnecessary suffering only if it inevitably or in its normal use has a particular effect, and the injury caused is considered by governments as disproportionate to the military necessity for it, that is, the military advantage to be gained from its use. This balancing test cannot be conducted in isolation. A weapon or munition's effects must be weighed in light of comparable, lawful weapons or munitions in use on the modern battlefield.

D. A weapon cannot be declared unlawful merely because it may cause severe suffering or injury. The

appropriate determination is whether a weapon or munition's employment for its normal or expected use would be prohibited under some or all circumstances. The correct criterion is whether the employment of a weapon for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to its military effectiveness. A State is not required to foresee or anticipate all possible uses or misuses of a weapon, for almost any weapon can be misused in ways that might be prohibited. Illegal use of a weapon does not make the weapon unlawful.

E. Effect of legal review. The weapons review process of the United States entitles commanders and all other personnel to assume that any weapon or munition contained in the U.S. military inventory and issued to military personnel is lawful. If there are any doubts, questions may be directed to the International and Operational Law Division (HQDA, DAJA-IO), Office of The Judge Advocate General of the Army.

1. Weapons may be illegal:

a. Per se. Those weapons calculated to cause unnecessary suffering, determined by the “usage of states.” Examples: lances with barbed heads or projectiles filled with glass. (FM 27-10, para. 34.)

b. Improper use. Any weapon may be used unlawfully; for example, use of M9 pistol to murder a prisoner of war. Illegal use of a lawful weapon does not make the weapon unlawful.

c. By agreement or prohibited by specific treaties. Example: certain land mines, booby traps, and ‘blinding laser weapons’ are prohibited by Protocols to the UNCCW. None were declared by the States Parties/drafters to cause unnecessary suffering or to be illegal as such. Anti-personnel land mines and booby traps were regulated (and, in some cases, certain types prohibited) in order to provide increased protection for the civilian population.

(1) Small Arms Projectiles. The 1868 Declaration of St. Petersburg prohibits exploding rounds of less than 400 grams. The United States is not a State Party to this declaration, and does not regard it as customary law. State practice since 1868 has limited this prohibition to projectiles weighing less than 400 grams specifically designed to detonate in the human body. Expanding military small arms ammunition – that is, so called ‘dum-dum’ projectiles, such as soft-nosed (exposed lead core) or hollow point projectiles – are prohibited by the 1899 Hague Declaration Concerning Expanding Bullets. Although the United States is not a party to this declaration, it has followed it in conventional military operations through use of full-metal jacketed ammunition. The prohibition on hollow point/soft nosed military projectiles does not prohibit full-metal jacketed projectiles that yaw or fragment, or “open tip” rifle projectiles containing a tiny aperture to increase accuracy.

(2) Hollow point or soft point ammunition. Hollow point or soft-point ammunition contain projectiles with either a hollow point or exposed lead core that flatten easily in the human body, often with skiving, and are designed to expand dramatically upon impact at all ranges. This ammunition is prohibited for use in international armed conflict against lawful enemy combatants by the 1899 Hague Declaration mentioned above. There are situations, however, outside of international armed conflict, where use of this ammunition is lawful because its use will significantly reduce collateral damage risk to innocent civilians and friendly force personnel, protected property (hostage rescue, aircraft security), or materiel containing hazardous materials. Military law


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enforcement personnel may be authorized to use this ammunition for law enforcement missions outside an active theater of operations. Military units or personnel are not entitled to possess or use small arms ammunition not issued to them or expressly authorized. Private acquisition of small arms ammunition for operational use is prohibited. “Matchking” ammunition (or similar rifle projectiles by other manufacturers) has an open tip, with a tiny aperture not designed to cause expansion. The projectile is designed to enhance accuracy only, and does not function like a hollow or soft point. It is lawful for use across the conflict spectrum, but may not be modified by soldiers (such as through opening up the tiny aperture to increase the possibility of expansion).

(3) Land Mines and Booby Traps. The United States regards land mines (anti-personnel and anti-vehicle) as lawful weapons, subject to the restrictions contained in the Amended Protocol II, UNCCW, and national policy. Military doctrine and mine inventory comply with each.

(4) U.S. policy on anti-personnel (APL) and anti-vehicle land mines. Per a February 2004 U.S. Policy, anti-personnel landmines that do not self-destruct or self-neutralize, (sometimes called “dumb” or “persistent” anti-personnel land mines) are only stockpiled for use by the United States in fulfillment of our treaty obligations to the Republic of Korea. Outside Korea, U.S. forces may no longer employ persistent APL and between now and 2010 anti-vehicle landmines that are persistent may only be employed outside the Republic of Korea when authorized by the President. After 2010, the United States will not employ either persistent APL or persistent anti-vehicle land mines. U.S. Land Mine Policy can be found at http://www.state.gov/t/pm/wra/.

(5) Incendiaries. Napalm, flame-throwers, and thermite/thermate type weapons are incendiary weapons. Tracer ammunition and white phosphorous are not incendiary weapons. All are lawful weapons. Protocol III to the UNCCW prohibits the use of incendiaries in certain situations, primarily in concentrations of civilians. The U.S. has not ratified Protocol III.

(6) Lasers. Lasers are lawful. U.S. Policy (SECDEF Memorandum [29 Aug 1995]) prohibits use of blinding lasers weapons specifically designed to cause permanent blindness to unenhanced vision. This policy recognizes that injury, including permanent blindness, may occur incidental to the legitimate military use of lasers (range-finding, targeting, etc.). U.S. policy became the basis for Protocol IV, UNCCW, which prohibits blinding laser weapons that meet the same definition. The Senate has not offered its advice and consent to ratification.

(7) Poison. Poison has been outlawed for thousands of years, and is prohibited by treaty. (HR, art. 23a.)

(8) Chemical weapons. Chemical weapons are governed by the Chemical Weapons Convention.

(a) The CWC was ratified by U.S. and came into force in April 1997.

(b) Provisions (twenty-four articles). Article I. Parties agree to never develop, produce, stockpile, transfer, use, or engage in military preparations to use chemical weapons. Retaliatory use (second use)is not allowed (this is a significant departure from 1925 Geneva Protocol). Requires destruction of chemical stockpiles. Each party agrees not to use Riot Control Agents (RCAs) as a “method of warfare.” Article II. Definitions of chemical weapons, toxic chemical, RCA, and purposes not prohibited by the convention. Article III. Requires parties to declare stocks of chemical weapons and facilities they possess. Articles IV and V. Procedures for destruction and verification, including routine on-site inspections. Article VIII. Establishes the Organization for the Prohibition of Chemical Weapons (OPWC). Article IX. Establishes “challenge inspection,” a short notice inspection in response to another party’s allegation of non-compliance.

(c) Riot Control Agents (RCA). U.S. RCA Policy is found in Executive Order 11850. Applies to use of Riot Control Agents and Herbicides; requires presidential approval before first use in an armed conflict.

(i) Executive Order 11850: Renounces first use in armed conflicts except in defensive military modes to save lives such as: controlling riots in areas under direct and distinct U.S. military control, to include rioting prisoners of war; dispersing civilians where the enemy uses them to mask or screen an attack; rescue


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missions for downed pilots/passengers and escaping PWs in remotely isolated areas; and in our rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.

(ii) The CWC prohibits RCA use as a “method of warfare.” “Method of warfare” is undefined. The Senate’s resolution of advice and consent for ratification to the CWC (S. Exec. Res. 75 - Senate Report, S-3373 of 24 April 1997, section 2- conditions, (26) - riot control agents) required that the President must certify that the U.S. is not restricted by the CWC in its use of riot control agents, including the use against “combatants” in any of the following cases: when the U.S. is not a party to the conflict, in consensual (Chapter VI, UN Charter) peacekeeping operations, and in Chapter VII (UN Charter) peacekeeping operations.

(iii) The implementation section of the Senate resolution requires that the President not modify E.O. 11850. (See S. Exec Res. 75, section 2 (26)(b), S-3378). The President’s certification document of 25 April 1997 states that “the United States is not restricted by the convention in its use of riot control agents in various peacetime and peacekeeping operations. These are situations in which the U.S. is not engaged in the use of force of a scope, duration, and intensity that would trigger the laws of war with respect to U.S. forces.”

(iv) Oleoresin Capsicum Pepper Spray (OC) a/k/a Cayenne Pepper Spray: U.S. classifies OC as a Riot Control Agent. (DAJA-IO, Information Paper of 15 August 1996, Use of Oleoresin Capsicum (OC) Pepper Spray and other Riot Control Agents (RCAs); DAJA-IO Memo of 20 September 1994, Subject: Request for Legal Review - Use of Oleoresin Capsicum Pepper Spray for Law Enforcement Purposes; CJCS Memo of 1 July 1994, Subject: Use of Riot Control Agents.)

(d) Herbicides. E.O. 11850 renounces first use in armed conflicts, except for domestic uses and to control vegetation around defensive areas.

(9) Biological. The 1925 Geneva Protocol prohibits bacteriological methods of warfare. The BWC (ref. 11) supplants the 1925 Geneva Protocol bact

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